Category Archives: speech

Court Orders That the Identities of Anonymous Internet Posters be Disclosed

Under certain circumstances, people who defame others anonymously on the Internet may lose their anonymity.   A recent example is a  case decided on July 12, 2010,  In re: Anonymous Online Speakers, Anonymous Online Speakers, v. United States District Court for the District of Nevada Reno, 611 F.3d 653, 10 Cal. Daily Op. Serv. 8774, 2010 Daily Journal D.A.R. 10,795 (Ninth Cir. 2010). That matter involved Quixtar, a “[m]ultilevel marketing business [that]  brought suit alleging that [a] competitor [TEAM] orchestrated [an] Internet smear campaign via anonymous postings and videos disparaging it and its business practices. As part of discovery process, the [lower Court] , ordered [the] competitor's online content manager to disclose identity of three of five online speakers who allegedly made the defamatory comments.” Id.

 

Examples of the alleged defamatory statements included the following:  “Quixtar has regularly, but secretly, acknowledged that its products are overpriced and not sellable”; “Quixtar refused to pay bonuses to IBOs in good standing”; Quixtar “terminated IBOs without due process”; “Quixtar currently suffers from systemic dishonesty”; and “Quixtar is aware of, approves, promotes, and facilitates the systematic noncompliance with the FTC's Amway rules.”  Id. at 656.

 

The Court acknowledged that First Amendment protections involving anonymous speech apply to the Internet, as well. “ First Amendment protection for anonymous speech was first articulated a half-century ago in the context of political speech, Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), but as the Supreme Court later observed, the Talley decision hearkened back to “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Undoubtedly the most famous pieces of anonymous American political advocacy are The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym “Publius.” Id. at 344 n. 6, 115 S.Ct. 1511. Their opponents, the Anti-Federalists, also published anonymously, cloaking their real identities with pseudonyms such as “Brutus,” “Centinel,” and “The Federal Farmer.” Id... Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech-there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without “fear of economic or official retaliation … [or] concern about social ostracism.” McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511.” Id. at 656-7.

 

    The Court also acknowledged that just because this was commercial speech, not political speech, that did not mean it lacked First Amendment protection. “The Internet postings and video at issue in the petition and cross-petition are best described as types of ‘expression related solely to the economic interests of the speaker and its audience’ and are thus properly categorized as commercial speech. Central Hudson Gas & Elec. Corp., 447 U.S. at 561, 100 S.Ct. 2343. The claimed disparagement goes to the heart of Quixtar's commercial practices and its business operations. However, this characterization alone does not determine the First Amendment protections for the anonymous commercial speech central to this case. The Supreme Court has underscored that “an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of *658 speech protected by the First Amendment.” McIntyre, 514 U.S. at 342, 115 S.Ct. 1511.” Id. at 657.

 

 The Court concluded that “[t]he district court here appropriately considered the important value of anonymous speech balanced against a party's need for relevant discovery in a civil action. It also recognized the “great potential for irresponsible, malicious, and harmful communication” and that particularly in the age of the Internet, the “speed and power of internet technology makes it difficult for the truth to ‘catch up’ to the lie.” Id. at 661

 

Accordingly, the Court of Appeals held  that because the lower Court’s ruling was not clearly erroneous, they would not disturb it on appeal.